Excellent article, Mas. Unfortunately, you used logic and common sense in explaining things, so liberals and gun haters will not understand them or simply dismiss your writings as the ramblings of a far right wing gun nut.
A very nice article Mas. The only problem is that most Liberals are so against anything that is deemed “Conservative” that they’re practically frothing at the mouth. Let’s hope that enough of them see reason before they do something really bad.
Just a few of my thoughts:
I find it interesting that in America a person can “accidentally” kill another person with their car and unless they are DUI they typically only face a civil fine and a suspension of their driver’s license. If you are a doctor and “accidentally” kill someone on the operating table you might be sued but typically face no criminal charges. BUT if you “accidentally” pull a trigger and kill someone you almost certainly will face a manslaughter charge. It’s even more ironic that car accidents and medical malpractice kill many more people every year than the use and misuse of firearms.
Which of the three above scenarios is the person under the most stress with the least amount of time to make a decision?
Can anyone explain this?
Mas said (in the article): “A cardinal element of the “executive orders” was declaring that selling firearms at a profit without a license would be criminalized, yet without specifying how many sales in what frame of time would constitute being an unlicensed firearms dealer.”
That sentence is just plain false. Nothing in these executive actions — not orders — has changed the law on who does and who does not have to have a FFL. Selling firearms at a profit may or may not be legal. All that has been done is to remind the public of what that law already covers. And the thing that it covers is engaging in the purchase or sale of firearms as a business. And one of the things that indicates it is a business is repetitively buying and selling firearms “with the principal objective of livelihood and profit.”
That’s not a new standard. 27 Code of Federal Regulations 478.11, enacted in 1978-1979, 37 years ago, defines “engaged in the business” in reference to a firearms dealer as, “A person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such a term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms”. Nothing in the President’s executive action changes any of that, but it does re-emphasize that it exists. The courts have made it clear that there is no certain number that triggers it, 2 purchases and resales can be enough in some circumstances but 100 may not be enough in others. The undefined number is built into the law, not part of Obama’s action.
Mas goes on to say, “Wherever you live, if you use guns you’ve probably acquired a few of them, perhaps quite a few. When you sense your end drawing near, or you realize your kids have moved to the city and don’t particularly want your firearms, so you decide to sell them … will you become that “unlicensed firearms dealer” and end your days in a Federal penitentiary?”
Simple answer on those facts alone: No. You made occasional purchases and now are going to make some occasional sales. The law I quoted above makes it clear that’s legal. Indeed, the ATF has, after the executive action, issued a new document implementing that additional explanation and one of the scenarios offered there makes it clear that’s okay:
“Scott has been collecting high-end firearms for years. In the six months before his son is about to enter college, Scott sells most of his collection in a series of transactions at gun shows, on the Internet, and to family and friends to provide funds to pay his son’s college expenses. Scott does not have to be licensed, because he is liquidating part of a personal collection.”
My recommendation would be that if you’re going to create a personal collection with the knowledge or hope that you might sell some or all of it for a profit later, especially if you’re going to sell some guns to buy new ones on a regular basis, that you be extremely circumspect about not saying or doing other things which might give the appearance of being in business. In that last scenario, if ‘ol Scott had tried to buff his image by setting up his table at the gun show with a sign that said “Scott’s Gun Shop” or used the username ScottsGunShop to sell online, the ATF would have a foot to stick in the door to say that Scott had acquired those “high end guns” for a profit as a business. They very well might not win, but it would have given them something to argue about.
But the situations that Mas described would have little or no risk involved, according to the ATF guide and the long-standing law.
Oh, so very well said. And also entertaining as one glides over the thin but notable layer of snark. Well done, Mas. 🙂
> two-thirds of deaths by firearms in this
> country are intentional suicide, which
> any thinking person realizes can’t be
> laid at the feet of law-abiding gun
> owners.
But suicide is a crime in [after a brief web search] 20 of the 50 states, which makes those who do it criminals, and therefore not law-abiding gun owners.
…
1: Something I haven’t heard talked about much – Prohibition didn’t work. “War on drugs” didn’t work – and now we’re legalizing marijuana. All these things did is force law-abiding citizens to become outlaws – they didn’t solve the problem and eventually were repealed. This is deep in our American psyche – we will not be told what to do. Insanity is repeating the same thing and expecting a different outcome – why do we expect this would be any different than those 2 historic events the people did not support? “We the people”….
2: How many hundreds of tons of drugs come into the country – illegally. Let’s say they outlaw/confiscate all guns (unlikely, see #1, but let’s go there). All that happens is the ”bad’ people now become the ONLY ones with guns as they already have the process set up to ‘import’ things illegally. No one has discussed this…
3: Obama is almost history. Either Democratic candidate scares me to death (really – a socialist president in the US?) BUT to me, the biggest threat is the loss of support in the Supreme Court with Scalia’s passing.
Great article!!
This Presidential election is extremely important on many levels.
It seems are rights are being challenged on many fronts, including the selection of a new Supreme Court Judge.
With this “new” executive order am I allowed to give (transfer) firearms to my
Step Sons and Daughter in-law?
I have several “safe queens” that I KNOW they would love and use responsibly, plus, I would rather have them now rather than including them in my will.
Thanks
According to the FBI, there were an estimated 1,165,383 violent crimes (murder and non-negligent homicides, rapes, robberies, and aggravated assaults) reported by law enforcement in the year 2014. Apparently each of those crimes occurred “in a place so remote from police response”.
“…then they get bitter, they cling to guns or religion…”, Candidate Obama, disdain for the Constitution since 2008.
Mas,
Everything about that article is FABULOUS!!! I can’t believe how much you taught me there, and I am someone who reads about firearms and politics all the time. I never knew or had forgotten that Obama thought it was good for rural Iowans to have firearms, and he would do the same. You present the facts in language most English readers can understand, you do it with a calm, peaceful spirit, and you kept it really short. That is appreciated by all, pro and con!
Dave the Liberal one: thanks for the input on legal issues. Do you have any particular info on the exceptional cases mentioned in the file 100871 where convictions for dealing without a license occurred where just “one or two,” or “two” deals were involved? One thing that bothers me is that earning a profit from selling a firearm appears to be held inherently wrong.
I believe that your “legal eagle” insight is valuable and I hope that you continue to analyze and educate.
Looking for a reply from Mas to your blog. I don’t think that anybody expects either of you to be perfect, and the debates have been illuminating.
I am curious… if easy availability of guns in Indiana is the reason for the high rate of criminal-with-a-gun crime in Chicago, why is Indiana’s CWAG crime rate so much lower than Chicago’s?
That allusion has never made sense to me.
Two-gun Steve, I let Liberal Dave’s comment go by, though I thought his use of the term “false” was a bit beyond the pale.
Obama’s speech was tailored to pander to his base, which includes the gun prohibitionists, and indeed simply repeated what the rules already are, giving the illusion he was doing something new and meaningful. However, the interpretation of “unlicensed dealer” has always been rather nebulous, and I get the sense that The Guy In the White House would like to “see some examples made.” And having seen more than my share of prosecutions geared to “make an example of someone” for political purposes, I am concerned about that.
Well said in the article, Mas! You point out, in your usual erudite manner, using language and logic an 8th grader can understand, the foibles of an out of control executive who is afraid of an armed populace in the White House. The problem with statistics goes back to the old adage of “There are lies, damned lies, and statistics.”
To Petercat’s point regarding the CWAG crime rate in Chicago vs. other more “gun friendly” communities, perhaps there are other variable in play? Perhaps it is more a factor of illegal gang activity than it is of an armed citizenry? Just a thought…
We all need to keep in mind that the Bloomberg Crowd likes to back up their illogical claims by quoting statistics to the illiterati and the MSM seldom questions where they got the numbers.
Even the FBI’s Uniform Crime Report can be twisted to fill an agenda by simply manipulating the data. Overlook some of the “constraints”, fudge a couple of numbers disregard a few qualifiers, and voila’ you have the report saying what you want it to. The “climate change” folks are expert in this methodology!
And kudos to you for disregarding Liberal Dave’s post. I agree his use of the term “false” was “a bit beyond the pale” and would add it was somewhat inflammatory. Perchance it was an attempt to “poke the bear”?
I used “false” because it was the most intent-neutral term I could think of. Almost any other word I could have used would have suggested an intent on Mas’ part and I did not and do not wish to do so.
Two-gun Steve: I got the two-sale case from the bulletin and am not directly familiar with the facts, but I’m sure that the sales were accompanied with other evidence of being engaged in business, since that’s the usual “gap filler.” These cases have an element of intent, that is whether or not you intended to be engaged in business. If you hold yourself out in public as conducting a business or something that looks like a business, then the courts aren’t going to spend much time looking for other evidence of intent. But it could have been some other sort of proof of engaging in business.
Mas,
While most of the points that you made are logically valid, I am afraid that it only amounts to “preaching to the choir”. It really is as simple as this:
President Obama and his supporters are left-wing. As I have noted before, the difference between the left-wing and right-wing worldview revolves around the assumed origin of the source of evil. A right-wing individual views evil as coming from the human heart and embraces the concept of individual responsibility to behave in a moral fashion and, also, to be accountable for one’s own personal safety.
A left-wing individual views evil as coming from social/environmental sources. Therefore, from the leftist point of view, evil is not controlled by individual responsibility but, rather, by modifying society (principally by government action or activist movements) so as to create an environment where identified sources of external evil are suppressed or eliminated.
So, your arguments might as well have been written in Swahili for all the impression that they would make to a leftist. It’s like arguing with a devoted Christian by selecting various bible passages and showing that they are logically contradictory. No matter the perfection of your logic, you will not convince the Christian. Why? Because what you are saying violates the faith and is heresy.
In a similar way, your article violates the left-wing faith and (therefore) is immediately dismissed as heresy by the left-wing faithful.
A true leftist must have an environmental scapegoat to blame for human violence. Firearms serve as that scapegoat. From the left-wing viewpoint, firearms and other weapons DIRECTLY CAUSE violence between humans. If they could be eliminated from the world, the greatest part of crime, suicide, violence and warfare would be gone and a utopia of peace would settle over the world. This is why gun control laws and international arms control treaties are so near-and-dear to the heart of every leftist.
It does no good to point out that this is a left-wing fantasy. To point out that crime and violence have dropped in the U.S., in recent years, even as the number of privately-owned firearms has greatly increased. Nor is it helpful to point out that violence and warfare did not just suddenly arise with the invention of firearms or that some of the bloodiest battles in history occurred in ancient times prior to the invention of firearms. All that is heresy again.
The leftist is caught up in the dream of a peaceful world in which no firearms or weapons of war exist. He does not want to be awakened from this wonderful dream! So, no more such harsh truth, please!
Liberal Dave- I agree that Obama’s executive action did nothing to change existing law. It did, however, from the top down, notify the Justice Department and by extension, the BATF the expectation of the “boss” how he expects the existing law will be enforced.
You as an attorney, and I, as a retired law enforcement officer, both know of occasions when a politician suggests to, say a police chief, a very strict interpretation and enforcement of existing laws when there seems to be no existing law that addresses the problem at hand. The Chief will inform his politician bosses that most off the cases will be either dismissed or lost in court, but the politician doesn’t care, he is “sending a message”. Thus, the “boss” is sending the message “even if we never get a conviction, we will cause our adversaries grief”.
You pointed out “the courts have made it clear” that the number of guns sold can vary such that 2 can be in violation but 100 may not. This means that some folks were unjustly prosecuted (in the view of the court). Why? Because the law was vague and open to widely varying interpretation?
Thus, the (in my view) tendency (I started to say of the left, but on reflection, I will say the establishment political class) is to attempt to rule by intimidation, using selective enforcement of vague laws, rather than the enactment of clear and concisely worded law.
I will close by reiterating what I’ve said in the past, when someone is arrested, rightfully or wrongfully, they will be out the expense of hiring an attorney, thus being penalized, robbed of both time, heartache, and money, even if they are found to have done nothing wrong. Thus, the admonishment I always gave to young officers subject to my input, “always ask yourself when you are about to arrest someone, is this something I might have done myself under the same circumstances, and if the answer is yes, think long and hard before you put that person in a position of losing his freedom and money, just because you can establish probable cause for an arrest”. One fact that no one can get around, every arrest makes money for some attorney, and costs somebody a portion of his wealth. Vague laws, open to varied interpretations, only worsens this problem.
Obama’s “executive actions” set a tone for the BATF, an agency not known for using common sense very often. But who cares as long as “it’s not my ox getting gored”? (having to prove in court I’m not a bad guy, at great personal expense against an entity of endless resources)
Back in the 1980s, the number of firearms related deaths was allegedly 35,000 according to the primary anti-gun group at the time. I happened to be doing a thesis on homicide and fact checked the number. I included criminal homicide, justifiable homicide, suicides and accidental deaths and still came up several thousand short. I have every expectation that the current 32,000 claimed deaths are similarly inflated.
Back when Richmond, VA was the leading homicide center of the US, the local police had a cooperative deal with the local US Attorney. Called Project Exile, every time the locals caught a felon with a gun, the US Attorney stepped in and the felon got an expedited journey to the Federal pen. It worked, didn’t take too long either. I don’t recall when or why the program was phased out. Possibly due to a lack of customers.
I see no reason why this system wouldn’t work wonders in Chicago. Apparently, the matter has been raised locally, with no result or comment. I have no idea what the case load/priorities are in the Chicago US Attorneys office. One wonders if the failure to implement a proven program is due to the Chicago homicide rate meeting a need to validate a political narrative. The mayor did get credit for the “don’t let a crisis go to waste” meme.
Jerry from KS,
You reminded me of another old adage. “Figures don’t lie, but liars figure.”
PatV had the best comment so far…the Supremes are the ones we should be worried about! Of course, who can predict when another 2A case will make it before them?
TXCOMT
I was disappointed that this essay didn’t address Obama’s long tenure with the gun-prohibitionist Joyce Foundation.
I hear ya, Rich, but there are only so many words you can put in a short editorial.
Dennis, re vagueness: Statutes, especially statutes which make things criminal, cannot be vague to the extent that you cannot figure out what is illegal and what is not. Statutes which are more vague than that can be declared unconstitutional for vagueness. (And, indeed, at one point in my legal career I did just that and won.) I don’t know if the gun dealer licensing law has been challenged on that point (though I can’t believe that it hasn’t been already), but I believe that it would pass muster if it was. It’s really like many other intent-based laws. If you run over someone with your car and kill them, you may be charged with negligent homicide or with first degree murder depending on what proof can be brought forth to show that you intended to kill them. There’s not complaint possible that the law or the police do not list somewhere all the different things, in specific detail, that might show that intent. Here, if you repeatedly buy and sell guns with no license you may be charged with dealing without a license if they can bring forth proof that you intended to be running a business to make a profit.
Liberal Dave, No disagreement with your legal analysis, but, “bringing forth proof that you intended to be running a business to make a profit”, is this not open to the opinion/judgement of the BATF?
Example; At one point in my life I had a considerable collection of firearms, both antiques, investment grade, and those that I used on a regular basis. This collection was larger than many storefront gun stores. Many had been purchased just to admire and pass down to my children and grandchildren. Some were acquired for sporting purposes, some for use in my profession. Many were just for the investment, knowing they would increase in value as the years went by, accruing value at a greater rate than any savings account or other investment. At times in my life journey my financial situation dictated that selling some of them would be wise. When the situation improved, and I could re-invest, I would add back to my collection. This worked out well for me as it was easy to convince my wife of the wisdom of buying the latest offering of, say, Kimber or Wilson Combat, as I never lost money on a transaction, rather, I normally made a little profit. These transactions, spread over time raised no eyebrows. I, and no one else would see any violation of the law. I never considered myself a “gun dealer”, rather, I saw myself as a gun aficionado who bought, traded guns for personal gratification.
As I approached retirement, I began dispersing those guns with sentimental value, to my children and grandchildren as gifts. I kept many as a nest egg for retirement, considering them no different than any of my retirement accounts. I had always thought that a time would come when I would liquidate my collection by renting a table at gun shows for however long it took rather than turning it over to a licensed and paying a consignment. A nice, tax free boost to my retirement income. Nothing in the law as written and interpreted, at the time, would preclude my plans.
Fast forward to today. The law has not changed, but instructions to the BATF from up above, on the determination of who is “running a business”, has. An eager BATF agent, wanting to impress his boss, could easily decide that a 66 year old retiree, renting a table at several consecutive gun shows and selling multiple guns, is in fact running a business for profit. Could I beat the charge in court? Probably, but not without legal counsel, which would negate some of my investment, and not without proving where I acquired all my weapons, some of which have been in my collection for 40+ years.
Thankfully, my collection has shrunken considerably, as a result of face to face private transactions, and I will not face the dilemma I described, but I feel certain the law is subject to abuse due to Obama’s actions.
Dennis, no one who believes that there are real issues being raised by the Black Lives Matter movements (though not necessarily the issues being raised by the sloganeering of that movement), as I do, can disagree that LEOs have a great amount of discretion in how they do their jobs. It’s also shown by the number of exonerations that we’re seeing based on DNA evidence and the number that we’re about to see based on forensic evidence based on junk science, such as bite marks. Decisions to investigate, arrest, and prosecute are always largely open to the opinion and judgment of LEOs and prosecutors.
But this law is no more subject to abuse of that discretion than dozens of other criminal laws and, indeed, is more precise than many. Based on the examples in bulletin and the exception in the law combined with the exception for personal collections, it would appear to me that there is a very wide scope for what can be done with personal collections such as you describe above.
@Liberal Dave,
I have to agree with Dennis on this one. It is all well and good to say that, as written, the applicable gun laws are no worse, in terms of being vague, than other laws. The fact is that other laws do not have a powerful group of left-wingers who feel that they absolute must make the world a better place by getting rid of all those nasty guns and that guns are such an evil environmental factor that “the ends justify the means” and underhanded distortions of the laws are, therefore, morally acceptable.
This is the kind of mentality that we are dealing with on the gun control issue. Notice the underhanded methods used:
1) Totally unbalanced reporting. This story consists of one side only with only one negative question being thrown in purely so that the person being interviewed could refute it.
2) Notice the fear-mongering. The wild-eyed fears of it being the “wild west” again in Texas and that the students will start pulling a gun to pop the Professor just because they got a bad grade!
3) Notice the outright lies. The Professor starts out by making claims that he is knowledgeable about guns and that he recognizes that guns “sort of” have a place in this world. All that is a lie. Clearly, he hates and fears them like most people fear a poisonous snake.
Notice the contradictions. You mentioned the BLM movement. Ever notice how the left wants to argue both sides of the street? The whole premise of the BLM movement is that the Police, due to racism, cannot be trusted to enforce the laws fairly or to use lethal force only when necessary. Yet, many of the anti-gunners, who support both the BLM movement and the gun control movement, will flip-flop on a dime and sincerely declare that the Police have superior training and can be absolutely trusted to carry guns in contrast to those crazy CCW license holders.
So, the Police are racist killers (when the left is arguing to disarm the Police and strip them of power) but well-trained and humble civil servants (when the left is arguing to disarm the people and strip them of 2A rights). In truth, the left hates and fears all guns and would gladly disarm everybody (citizens, police and the military) if only they could. The lies and false arguments are merely a justified means to reach that goal.
Lets face it. When dealing with people who feel that the “ends justify the means” and that anything goes as long as it supports the gun control agenda, we cannot trust that even a clear law will not be twisted to support Obama’s agenda.
Actually, I was struck by the line, “I was faced as a dean to administrate a law that I didn’t think is right and that my faculty and most of my students were very upset about.” Reminded me of Kim Davis’ position on issuing marriage licenses to gay couples. The difference being, of course, that Dean Steiner did the right thing when faced with that dilemma and resigned rather than trying to impose his beliefs on others as Davis did.
@ Dave (the Liberal, non-uncle one):
Well, you can choose to believe that this was all a “noble act” if you wish. However, I note that he did not resign his post in Texas until he had a new job (maybe a better paying one?) already lined up in PA. It’s not too hard to fall on your sword when you know you won’t be cut!
What he actual got was a soapbox to air his anti-gun views which NPR was all too happy to provide.
You know, we only have his word that all the faculty and most of the students were upset by this law. How does he know that? Did he take a poll? Or is all that just a reflection of his own bias?
I might have believed that type of statement if this was some college in the Northeast but we are talking Texas here. I think it was all just more disinformation designed to shore up his antigun views.
All of which is beside the point that I was making in my previous post which was: The anti-gunners are so convinced that their view is “right” and that disarmament is so “noble” that it is “morally justified” for them to lie, cheat, spread disinformation, present one-sided distorted views, imprison people, manipulate statistics, and twist the law since any method (no matter how underhanded) is justified by the glorious nobility of their holy cause! Therefore, gun rights supporters cannot count on the equal protection of the laws when that same law is administered by hands of an anti-gun President and administration.
Prior to the new law, carry was prohibited in most circumstances in Texas colleges, public and private. With the new law, public colleges here in Texas are limited in where they can and cannot prohibit guns. Private colleges here, however, are free to decide where to prohibit them, either altogether, in some places, or not at all. This article, says:
“More than 20 private schools have said they won’t lift their gun bans when the law takes effect this August, including the state’s largest private universities that have religious affiliations and often align with the type of conservative values espoused by the politicians behind the law.
“The opposition has not surprised top Texas Republicans who championed the law as a matter of constitutional rights and self-defense. But it reflects a widespread belief even among conservative university leaders that guns have no place in the classroom.
“Baylor, Texas Christian and Southern Methodist universities have all declined to allow guns on their campuses.
Another article in our local paper says that “Private universities may still ban guns, and most in Texas have done so”.
With only a few exceptions — Texas A&M University is the only one I know, but others may exist as well — public colleges have had this shoved down their throats and private colleges, even the most conservative (such as Southwestern Baptist Theological Seminary in Fort Worth) have, given this new opportunity to allow guns, said “No, thank you.”
@ Liberal Dave:
As I noted, the point of my post (above) was not this latest change to Texas Law. I referenced the NPR story as an example of the anti-gun mentality. It was not my intent to raise the topic of campus carry.
Of course, if one does not like the topic under discussion, then trying to switch the topic to something else is quite understandable. So, perhaps you would rather talk about campus carry than continue with the original topic of the danger of an anti-gun administration twisting the law to suit their own purposes?
As far that the bureaucrats who run various public and private universities in Texas are concerned, I am quite certain that they would oppose this change in the law. For the bureaucratic mind, keeping your space as a “gun free zone (GFZ)” will always be the more attractive option. In America today, there is no liability associated with keeping a GFZ.
Consider this: If a mass shooting does occur on a Texas University because of the GFZ, the only danger is to the students. They may DIE but the bureaucrat will LIVE and do just FINE! No one will blame him or her in the least for the GFZ. On the contrary, the media will offer praise and sympathy even as the bodies are carried off! The evil shooter with his evil gun will take all the blame. No lawsuit is likely to gain traction either because of the GFZ. Therefore, keeping the GFZ is the absolute best option for the University bureaucrat who wants to also keep his job!
Contrast this to the liability if he decides to allow concealed carry. If an incident then occurs (whether a mass shooting or just ordinary crime) which involves a CCW license holder, the University can expect viscous attacks from the media because they relaxed the GFZ in the first place! And the University might well be dragged into court because of it.
No, even with the cover of the new Texas law, the safest bet for any University bureaucrat who wants to hold onto his job is to cling to his precious GFZ like it was gold.
So, I can well believe that the majority of university bureaucrat will indeed scream “please don’t take away our beloved GFZ!”.
I doubt, however, that the students will necessarily view it in the same light as the university leadership. Some would have anti-gun views (no doubt, given the effectiveness of media brainwashing and propaganda) but others would be less eager to be victims and would want the option of self-defense.
Excellent article, Mas. Unfortunately, you used logic and common sense in explaining things, so liberals and gun haters will not understand them or simply dismiss your writings as the ramblings of a far right wing gun nut.
A very nice article Mas. The only problem is that most Liberals are so against anything that is deemed “Conservative” that they’re practically frothing at the mouth. Let’s hope that enough of them see reason before they do something really bad.
Just a few of my thoughts:
I find it interesting that in America a person can “accidentally” kill another person with their car and unless they are DUI they typically only face a civil fine and a suspension of their driver’s license. If you are a doctor and “accidentally” kill someone on the operating table you might be sued but typically face no criminal charges. BUT if you “accidentally” pull a trigger and kill someone you almost certainly will face a manslaughter charge. It’s even more ironic that car accidents and medical malpractice kill many more people every year than the use and misuse of firearms.
Which of the three above scenarios is the person under the most stress with the least amount of time to make a decision?
Can anyone explain this?
Mas said (in the article): “A cardinal element of the “executive orders” was declaring that selling firearms at a profit without a license would be criminalized, yet without specifying how many sales in what frame of time would constitute being an unlicensed firearms dealer.”
That sentence is just plain false. Nothing in these executive actions — not orders — has changed the law on who does and who does not have to have a FFL. Selling firearms at a profit may or may not be legal. All that has been done is to remind the public of what that law already covers. And the thing that it covers is engaging in the purchase or sale of firearms as a business. And one of the things that indicates it is a business is repetitively buying and selling firearms “with the principal objective of livelihood and profit.”
That’s not a new standard. 27 Code of Federal Regulations 478.11, enacted in 1978-1979, 37 years ago, defines “engaged in the business” in reference to a firearms dealer as, “A person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such a term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms”. Nothing in the President’s executive action changes any of that, but it does re-emphasize that it exists. The courts have made it clear that there is no certain number that triggers it, 2 purchases and resales can be enough in some circumstances but 100 may not be enough in others. The undefined number is built into the law, not part of Obama’s action.
Mas goes on to say, “Wherever you live, if you use guns you’ve probably acquired a few of them, perhaps quite a few. When you sense your end drawing near, or you realize your kids have moved to the city and don’t particularly want your firearms, so you decide to sell them … will you become that “unlicensed firearms dealer” and end your days in a Federal penitentiary?”
Simple answer on those facts alone: No. You made occasional purchases and now are going to make some occasional sales. The law I quoted above makes it clear that’s legal. Indeed, the ATF has, after the executive action, issued a new document implementing that additional explanation and one of the scenarios offered there makes it clear that’s okay:
“Scott has been collecting high-end firearms for years. In the six months before his son is about to enter college, Scott sells most of his collection in a series of transactions at gun shows, on the Internet, and to family and friends to provide funds to pay his son’s college expenses. Scott does not have to be licensed, because he is liquidating part of a personal collection.”
That guide can be found at: https://www.atf.gov/file/100871/download and makes interesting reading.
My recommendation would be that if you’re going to create a personal collection with the knowledge or hope that you might sell some or all of it for a profit later, especially if you’re going to sell some guns to buy new ones on a regular basis, that you be extremely circumspect about not saying or doing other things which might give the appearance of being in business. In that last scenario, if ‘ol Scott had tried to buff his image by setting up his table at the gun show with a sign that said “Scott’s Gun Shop” or used the username ScottsGunShop to sell online, the ATF would have a foot to stick in the door to say that Scott had acquired those “high end guns” for a profit as a business. They very well might not win, but it would have given them something to argue about.
But the situations that Mas described would have little or no risk involved, according to the ATF guide and the long-standing law.
Oh, so very well said. And also entertaining as one glides over the thin but notable layer of snark. Well done, Mas. 🙂
> two-thirds of deaths by firearms in this
> country are intentional suicide, which
> any thinking person realizes can’t be
> laid at the feet of law-abiding gun
> owners.
But suicide is a crime in [after a brief web search] 20 of the 50 states, which makes those who do it criminals, and therefore not law-abiding gun owners.
…
1: Something I haven’t heard talked about much – Prohibition didn’t work. “War on drugs” didn’t work – and now we’re legalizing marijuana. All these things did is force law-abiding citizens to become outlaws – they didn’t solve the problem and eventually were repealed. This is deep in our American psyche – we will not be told what to do. Insanity is repeating the same thing and expecting a different outcome – why do we expect this would be any different than those 2 historic events the people did not support? “We the people”….
2: How many hundreds of tons of drugs come into the country – illegally. Let’s say they outlaw/confiscate all guns (unlikely, see #1, but let’s go there). All that happens is the ”bad’ people now become the ONLY ones with guns as they already have the process set up to ‘import’ things illegally. No one has discussed this…
3: Obama is almost history. Either Democratic candidate scares me to death (really – a socialist president in the US?) BUT to me, the biggest threat is the loss of support in the Supreme Court with Scalia’s passing.
Great article!!
This Presidential election is extremely important on many levels.
It seems are rights are being challenged on many fronts, including the selection of a new Supreme Court Judge.
With this “new” executive order am I allowed to give (transfer) firearms to my
Step Sons and Daughter in-law?
I have several “safe queens” that I KNOW they would love and use responsibly, plus, I would rather have them now rather than including them in my will.
Thanks
According to the FBI, there were an estimated 1,165,383 violent crimes (murder and non-negligent homicides, rapes, robberies, and aggravated assaults) reported by law enforcement in the year 2014. Apparently each of those crimes occurred “in a place so remote from police response”.
“…then they get bitter, they cling to guns or religion…”, Candidate Obama, disdain for the Constitution since 2008.
Mas,
Everything about that article is FABULOUS!!! I can’t believe how much you taught me there, and I am someone who reads about firearms and politics all the time. I never knew or had forgotten that Obama thought it was good for rural Iowans to have firearms, and he would do the same. You present the facts in language most English readers can understand, you do it with a calm, peaceful spirit, and you kept it really short. That is appreciated by all, pro and con!
Dave the Liberal one: thanks for the input on legal issues. Do you have any particular info on the exceptional cases mentioned in the file 100871 where convictions for dealing without a license occurred where just “one or two,” or “two” deals were involved? One thing that bothers me is that earning a profit from selling a firearm appears to be held inherently wrong.
I believe that your “legal eagle” insight is valuable and I hope that you continue to analyze and educate.
Looking for a reply from Mas to your blog. I don’t think that anybody expects either of you to be perfect, and the debates have been illuminating.
I am curious… if easy availability of guns in Indiana is the reason for the high rate of criminal-with-a-gun crime in Chicago, why is Indiana’s CWAG crime rate so much lower than Chicago’s?
That allusion has never made sense to me.
Two-gun Steve, I let Liberal Dave’s comment go by, though I thought his use of the term “false” was a bit beyond the pale.
Obama’s speech was tailored to pander to his base, which includes the gun prohibitionists, and indeed simply repeated what the rules already are, giving the illusion he was doing something new and meaningful. However, the interpretation of “unlicensed dealer” has always been rather nebulous, and I get the sense that The Guy In the White House would like to “see some examples made.” And having seen more than my share of prosecutions geared to “make an example of someone” for political purposes, I am concerned about that.
Well said in the article, Mas! You point out, in your usual erudite manner, using language and logic an 8th grader can understand, the foibles of an out of control executive who is afraid of an armed populace in the White House. The problem with statistics goes back to the old adage of “There are lies, damned lies, and statistics.”
To Petercat’s point regarding the CWAG crime rate in Chicago vs. other more “gun friendly” communities, perhaps there are other variable in play? Perhaps it is more a factor of illegal gang activity than it is of an armed citizenry? Just a thought…
We all need to keep in mind that the Bloomberg Crowd likes to back up their illogical claims by quoting statistics to the illiterati and the MSM seldom questions where they got the numbers.
Even the FBI’s Uniform Crime Report can be twisted to fill an agenda by simply manipulating the data. Overlook some of the “constraints”, fudge a couple of numbers disregard a few qualifiers, and voila’ you have the report saying what you want it to. The “climate change” folks are expert in this methodology!
And kudos to you for disregarding Liberal Dave’s post. I agree his use of the term “false” was “a bit beyond the pale” and would add it was somewhat inflammatory. Perchance it was an attempt to “poke the bear”?
I used “false” because it was the most intent-neutral term I could think of. Almost any other word I could have used would have suggested an intent on Mas’ part and I did not and do not wish to do so.
Two-gun Steve: I got the two-sale case from the bulletin and am not directly familiar with the facts, but I’m sure that the sales were accompanied with other evidence of being engaged in business, since that’s the usual “gap filler.” These cases have an element of intent, that is whether or not you intended to be engaged in business. If you hold yourself out in public as conducting a business or something that looks like a business, then the courts aren’t going to spend much time looking for other evidence of intent. But it could have been some other sort of proof of engaging in business.
Mas,
While most of the points that you made are logically valid, I am afraid that it only amounts to “preaching to the choir”. It really is as simple as this:
President Obama and his supporters are left-wing. As I have noted before, the difference between the left-wing and right-wing worldview revolves around the assumed origin of the source of evil. A right-wing individual views evil as coming from the human heart and embraces the concept of individual responsibility to behave in a moral fashion and, also, to be accountable for one’s own personal safety.
A left-wing individual views evil as coming from social/environmental sources. Therefore, from the leftist point of view, evil is not controlled by individual responsibility but, rather, by modifying society (principally by government action or activist movements) so as to create an environment where identified sources of external evil are suppressed or eliminated.
So, your arguments might as well have been written in Swahili for all the impression that they would make to a leftist. It’s like arguing with a devoted Christian by selecting various bible passages and showing that they are logically contradictory. No matter the perfection of your logic, you will not convince the Christian. Why? Because what you are saying violates the faith and is heresy.
In a similar way, your article violates the left-wing faith and (therefore) is immediately dismissed as heresy by the left-wing faithful.
A true leftist must have an environmental scapegoat to blame for human violence. Firearms serve as that scapegoat. From the left-wing viewpoint, firearms and other weapons DIRECTLY CAUSE violence between humans. If they could be eliminated from the world, the greatest part of crime, suicide, violence and warfare would be gone and a utopia of peace would settle over the world. This is why gun control laws and international arms control treaties are so near-and-dear to the heart of every leftist.
It does no good to point out that this is a left-wing fantasy. To point out that crime and violence have dropped in the U.S., in recent years, even as the number of privately-owned firearms has greatly increased. Nor is it helpful to point out that violence and warfare did not just suddenly arise with the invention of firearms or that some of the bloodiest battles in history occurred in ancient times prior to the invention of firearms. All that is heresy again.
The leftist is caught up in the dream of a peaceful world in which no firearms or weapons of war exist. He does not want to be awakened from this wonderful dream! So, no more such harsh truth, please!
Liberal Dave- I agree that Obama’s executive action did nothing to change existing law. It did, however, from the top down, notify the Justice Department and by extension, the BATF the expectation of the “boss” how he expects the existing law will be enforced.
You as an attorney, and I, as a retired law enforcement officer, both know of occasions when a politician suggests to, say a police chief, a very strict interpretation and enforcement of existing laws when there seems to be no existing law that addresses the problem at hand. The Chief will inform his politician bosses that most off the cases will be either dismissed or lost in court, but the politician doesn’t care, he is “sending a message”. Thus, the “boss” is sending the message “even if we never get a conviction, we will cause our adversaries grief”.
You pointed out “the courts have made it clear” that the number of guns sold can vary such that 2 can be in violation but 100 may not. This means that some folks were unjustly prosecuted (in the view of the court). Why? Because the law was vague and open to widely varying interpretation?
Thus, the (in my view) tendency (I started to say of the left, but on reflection, I will say the establishment political class) is to attempt to rule by intimidation, using selective enforcement of vague laws, rather than the enactment of clear and concisely worded law.
I will close by reiterating what I’ve said in the past, when someone is arrested, rightfully or wrongfully, they will be out the expense of hiring an attorney, thus being penalized, robbed of both time, heartache, and money, even if they are found to have done nothing wrong. Thus, the admonishment I always gave to young officers subject to my input, “always ask yourself when you are about to arrest someone, is this something I might have done myself under the same circumstances, and if the answer is yes, think long and hard before you put that person in a position of losing his freedom and money, just because you can establish probable cause for an arrest”. One fact that no one can get around, every arrest makes money for some attorney, and costs somebody a portion of his wealth. Vague laws, open to varied interpretations, only worsens this problem.
Obama’s “executive actions” set a tone for the BATF, an agency not known for using common sense very often. But who cares as long as “it’s not my ox getting gored”? (having to prove in court I’m not a bad guy, at great personal expense against an entity of endless resources)
Back in the 1980s, the number of firearms related deaths was allegedly 35,000 according to the primary anti-gun group at the time. I happened to be doing a thesis on homicide and fact checked the number. I included criminal homicide, justifiable homicide, suicides and accidental deaths and still came up several thousand short. I have every expectation that the current 32,000 claimed deaths are similarly inflated.
Back when Richmond, VA was the leading homicide center of the US, the local police had a cooperative deal with the local US Attorney. Called Project Exile, every time the locals caught a felon with a gun, the US Attorney stepped in and the felon got an expedited journey to the Federal pen. It worked, didn’t take too long either. I don’t recall when or why the program was phased out. Possibly due to a lack of customers.
I see no reason why this system wouldn’t work wonders in Chicago. Apparently, the matter has been raised locally, with no result or comment. I have no idea what the case load/priorities are in the Chicago US Attorneys office. One wonders if the failure to implement a proven program is due to the Chicago homicide rate meeting a need to validate a political narrative. The mayor did get credit for the “don’t let a crisis go to waste” meme.
Jerry from KS,
You reminded me of another old adage. “Figures don’t lie, but liars figure.”
PatV had the best comment so far…the Supremes are the ones we should be worried about! Of course, who can predict when another 2A case will make it before them?
TXCOMT
I was disappointed that this essay didn’t address Obama’s long tenure with the gun-prohibitionist Joyce Foundation.
I hear ya, Rich, but there are only so many words you can put in a short editorial.
Dennis, re vagueness: Statutes, especially statutes which make things criminal, cannot be vague to the extent that you cannot figure out what is illegal and what is not. Statutes which are more vague than that can be declared unconstitutional for vagueness. (And, indeed, at one point in my legal career I did just that and won.) I don’t know if the gun dealer licensing law has been challenged on that point (though I can’t believe that it hasn’t been already), but I believe that it would pass muster if it was. It’s really like many other intent-based laws. If you run over someone with your car and kill them, you may be charged with negligent homicide or with first degree murder depending on what proof can be brought forth to show that you intended to kill them. There’s not complaint possible that the law or the police do not list somewhere all the different things, in specific detail, that might show that intent. Here, if you repeatedly buy and sell guns with no license you may be charged with dealing without a license if they can bring forth proof that you intended to be running a business to make a profit.
Liberal Dave, No disagreement with your legal analysis, but, “bringing forth proof that you intended to be running a business to make a profit”, is this not open to the opinion/judgement of the BATF?
Example; At one point in my life I had a considerable collection of firearms, both antiques, investment grade, and those that I used on a regular basis. This collection was larger than many storefront gun stores. Many had been purchased just to admire and pass down to my children and grandchildren. Some were acquired for sporting purposes, some for use in my profession. Many were just for the investment, knowing they would increase in value as the years went by, accruing value at a greater rate than any savings account or other investment. At times in my life journey my financial situation dictated that selling some of them would be wise. When the situation improved, and I could re-invest, I would add back to my collection. This worked out well for me as it was easy to convince my wife of the wisdom of buying the latest offering of, say, Kimber or Wilson Combat, as I never lost money on a transaction, rather, I normally made a little profit. These transactions, spread over time raised no eyebrows. I, and no one else would see any violation of the law. I never considered myself a “gun dealer”, rather, I saw myself as a gun aficionado who bought, traded guns for personal gratification.
As I approached retirement, I began dispersing those guns with sentimental value, to my children and grandchildren as gifts. I kept many as a nest egg for retirement, considering them no different than any of my retirement accounts. I had always thought that a time would come when I would liquidate my collection by renting a table at gun shows for however long it took rather than turning it over to a licensed and paying a consignment. A nice, tax free boost to my retirement income. Nothing in the law as written and interpreted, at the time, would preclude my plans.
Fast forward to today. The law has not changed, but instructions to the BATF from up above, on the determination of who is “running a business”, has. An eager BATF agent, wanting to impress his boss, could easily decide that a 66 year old retiree, renting a table at several consecutive gun shows and selling multiple guns, is in fact running a business for profit. Could I beat the charge in court? Probably, but not without legal counsel, which would negate some of my investment, and not without proving where I acquired all my weapons, some of which have been in my collection for 40+ years.
Thankfully, my collection has shrunken considerably, as a result of face to face private transactions, and I will not face the dilemma I described, but I feel certain the law is subject to abuse due to Obama’s actions.
Dennis, no one who believes that there are real issues being raised by the Black Lives Matter movements (though not necessarily the issues being raised by the sloganeering of that movement), as I do, can disagree that LEOs have a great amount of discretion in how they do their jobs. It’s also shown by the number of exonerations that we’re seeing based on DNA evidence and the number that we’re about to see based on forensic evidence based on junk science, such as bite marks. Decisions to investigate, arrest, and prosecute are always largely open to the opinion and judgment of LEOs and prosecutors.
But this law is no more subject to abuse of that discretion than dozens of other criminal laws and, indeed, is more precise than many. Based on the examples in bulletin and the exception in the law combined with the exception for personal collections, it would appear to me that there is a very wide scope for what can be done with personal collections such as you describe above.
@Liberal Dave,
I have to agree with Dennis on this one. It is all well and good to say that, as written, the applicable gun laws are no worse, in terms of being vague, than other laws. The fact is that other laws do not have a powerful group of left-wingers who feel that they absolute must make the world a better place by getting rid of all those nasty guns and that guns are such an evil environmental factor that “the ends justify the means” and underhanded distortions of the laws are, therefore, morally acceptable.
Consider this story:
http://www.npr.org/2016/02/29/468522776/professor-to-take-a-job-in-pa-after-texas-allows-guns-on-campus
This is the kind of mentality that we are dealing with on the gun control issue. Notice the underhanded methods used:
1) Totally unbalanced reporting. This story consists of one side only with only one negative question being thrown in purely so that the person being interviewed could refute it.
2) Notice the fear-mongering. The wild-eyed fears of it being the “wild west” again in Texas and that the students will start pulling a gun to pop the Professor just because they got a bad grade!
3) Notice the outright lies. The Professor starts out by making claims that he is knowledgeable about guns and that he recognizes that guns “sort of” have a place in this world. All that is a lie. Clearly, he hates and fears them like most people fear a poisonous snake.
Notice the contradictions. You mentioned the BLM movement. Ever notice how the left wants to argue both sides of the street? The whole premise of the BLM movement is that the Police, due to racism, cannot be trusted to enforce the laws fairly or to use lethal force only when necessary. Yet, many of the anti-gunners, who support both the BLM movement and the gun control movement, will flip-flop on a dime and sincerely declare that the Police have superior training and can be absolutely trusted to carry guns in contrast to those crazy CCW license holders.
So, the Police are racist killers (when the left is arguing to disarm the Police and strip them of power) but well-trained and humble civil servants (when the left is arguing to disarm the people and strip them of 2A rights). In truth, the left hates and fears all guns and would gladly disarm everybody (citizens, police and the military) if only they could. The lies and false arguments are merely a justified means to reach that goal.
Lets face it. When dealing with people who feel that the “ends justify the means” and that anything goes as long as it supports the gun control agenda, we cannot trust that even a clear law will not be twisted to support Obama’s agenda.
Actually, I was struck by the line, “I was faced as a dean to administrate a law that I didn’t think is right and that my faculty and most of my students were very upset about.” Reminded me of Kim Davis’ position on issuing marriage licenses to gay couples. The difference being, of course, that Dean Steiner did the right thing when faced with that dilemma and resigned rather than trying to impose his beliefs on others as Davis did.
@ Dave (the Liberal, non-uncle one):
Well, you can choose to believe that this was all a “noble act” if you wish. However, I note that he did not resign his post in Texas until he had a new job (maybe a better paying one?) already lined up in PA. It’s not too hard to fall on your sword when you know you won’t be cut!
What he actual got was a soapbox to air his anti-gun views which NPR was all too happy to provide.
You know, we only have his word that all the faculty and most of the students were upset by this law. How does he know that? Did he take a poll? Or is all that just a reflection of his own bias?
I might have believed that type of statement if this was some college in the Northeast but we are talking Texas here. I think it was all just more disinformation designed to shore up his antigun views.
All of which is beside the point that I was making in my previous post which was: The anti-gunners are so convinced that their view is “right” and that disarmament is so “noble” that it is “morally justified” for them to lie, cheat, spread disinformation, present one-sided distorted views, imprison people, manipulate statistics, and twist the law since any method (no matter how underhanded) is justified by the glorious nobility of their holy cause! Therefore, gun rights supporters cannot count on the equal protection of the laws when that same law is administered by hands of an anti-gun President and administration.
Prior to the new law, carry was prohibited in most circumstances in Texas colleges, public and private. With the new law, public colleges here in Texas are limited in where they can and cannot prohibit guns. Private colleges here, however, are free to decide where to prohibit them, either altogether, in some places, or not at all. This article, says:
http://abcnews.go.com/US/wireStory/texas-private-colleges-guns-campus-37095935
“More than 20 private schools have said they won’t lift their gun bans when the law takes effect this August, including the state’s largest private universities that have religious affiliations and often align with the type of conservative values espoused by the politicians behind the law.
“The opposition has not surprised top Texas Republicans who championed the law as a matter of constitutional rights and self-defense. But it reflects a widespread belief even among conservative university leaders that guns have no place in the classroom.
“Baylor, Texas Christian and Southern Methodist universities have all declined to allow guns on their campuses.
Another article in our local paper says that “Private universities may still ban guns, and most in Texas have done so”.
With only a few exceptions — Texas A&M University is the only one I know, but others may exist as well — public colleges have had this shoved down their throats and private colleges, even the most conservative (such as Southwestern Baptist Theological Seminary in Fort Worth) have, given this new opportunity to allow guns, said “No, thank you.”
@ Liberal Dave:
As I noted, the point of my post (above) was not this latest change to Texas Law. I referenced the NPR story as an example of the anti-gun mentality. It was not my intent to raise the topic of campus carry.
Of course, if one does not like the topic under discussion, then trying to switch the topic to something else is quite understandable. So, perhaps you would rather talk about campus carry than continue with the original topic of the danger of an anti-gun administration twisting the law to suit their own purposes?
As far that the bureaucrats who run various public and private universities in Texas are concerned, I am quite certain that they would oppose this change in the law. For the bureaucratic mind, keeping your space as a “gun free zone (GFZ)” will always be the more attractive option. In America today, there is no liability associated with keeping a GFZ.
Consider this: If a mass shooting does occur on a Texas University because of the GFZ, the only danger is to the students. They may DIE but the bureaucrat will LIVE and do just FINE! No one will blame him or her in the least for the GFZ. On the contrary, the media will offer praise and sympathy even as the bodies are carried off! The evil shooter with his evil gun will take all the blame. No lawsuit is likely to gain traction either because of the GFZ. Therefore, keeping the GFZ is the absolute best option for the University bureaucrat who wants to also keep his job!
Contrast this to the liability if he decides to allow concealed carry. If an incident then occurs (whether a mass shooting or just ordinary crime) which involves a CCW license holder, the University can expect viscous attacks from the media because they relaxed the GFZ in the first place! And the University might well be dragged into court because of it.
No, even with the cover of the new Texas law, the safest bet for any University bureaucrat who wants to hold onto his job is to cling to his precious GFZ like it was gold.
So, I can well believe that the majority of university bureaucrat will indeed scream “please don’t take away our beloved GFZ!”.
I doubt, however, that the students will necessarily view it in the same light as the university leadership. Some would have anti-gun views (no doubt, given the effectiveness of media brainwashing and propaganda) but others would be less eager to be victims and would want the option of self-defense.
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